Opinion
22-3121-JWL
06-27-2023
EDDIE LAMAR THOMAS, JR., Petitioner, v. DON LANGFORD, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Petitioner's motion for certificate of appealability. (Doc. 29.) In accordance with Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court denied a certificate of appealability when it entered its final order adverse to Petitioner. (Doc. 27, p. 19-20.) That order denied relief on the merits of Petitioner's arguments. See id. at 7-19.
As stated in the order and as Petitioner acknowledges in his current motion, he is entitled to a certificate of appealability only if he “has made a substantial showing of the denial of a constitutional right.” Id. at 19-20; 28 U.S.C. § 2253. Petitioner also accurately points out that he need not prevail on the merits in order to obtain a certificate of appealability. Rather, he must show that “‘reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.”'” See Mitchell v. Dowling, 672 Fed.Appx. 792, 795 (10th Cir. 2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has carefully considered the arguments Petitioner makes in his motion for certificate of appealability and maintains its prior conclusion that there are no grounds to grant a certificate of appealability in this matter. Even liberally construing the motion, as is appropriate since Petitioner proceeds pro se, the Court concludes that Petitioner has not made a substantial showing of constitutional error in the state courts. Additionally, Petitioner has now filed a notice of appeal (Doc. 30) which “constitutes a request for a certificate of appealability.” See U.S.Ct. App. 10th Cir. Rule 22.1(A). Therefore, the question of whether a certificate of appealability should issue will be answered by the 10th Circuit in Petitioner's pending appeal.
IT IS THEREFORE ORDERED that Petitioner's motion for certificate of appealability (Doc. 29) is denied.
IT IS SO ORDERED.